Who Is a Whistleblower - Essay Example

Whistleblower Whistleblower A whistleblower is someone who informs the public or the ities about some illegal activities committed by a government department, a private organization, or a company. Thus, it becomes possible to categorize whistleblowers into two; the internal whistleblower and the external whistleblower. While the internal whistleblower reports the misconduct he or she notices to another person within the organization, an external whistleblower reports the same to the people outside, like media, various governmental agencies, or law enforcement. In the United States, the protection of whistleblowers is done by the Office of Whistleblower Protection Program (OWPP) under the Department of Labor. The OWPP is operated through the Occupational Safety and Health Administration. Thus, a whistleblower should file a complaint with the OSHA office within 30 days if there is a case of discrimination. In order to protect those who report a company fraud or fraud in a government department, there are a large number of legal acts in the United States, which deal with various issues ranging from environmental pollution, company corruption, safety and health violation, and discrimination in the workplace. Admittedly, there is constitutional Protection offered to whistleblowers. They are the First Amendment to the US Constitution, Fourteenth Amendment to the US Constitution, Section 42 of the Civil Rights Act of 1871, and Section 42 of the Civil Rights Attorney’s Fee Act. Similarly, in order to protect those whistleblowers from corporate, financial, or marketing sector, there are various statutes like Consumer Product Safety Act of 2008, Section 806 of Corporate and Criminal Fraud Accountability Act, Protection for employees of publicly traded companies who provide evidence of fraud, 18 USC, Sarbanes-Oxley Act of 2002, Monetary Transactions, Whistleblower Protection Provision 31 U.S.C and so on (National whistleblowers Center, n. d.). Similarly, there are various statutes for environmental whistleblowers like Clean Air Act, Comprehensive Environmental Response, Compensation and Liability Act, Pipeline Safety Improvement Act, Safe Drinking Water Act, Solid Waste Disposal Act, Surface Mining Act, Toxic Substances Control Act, and Water Pollution Control Act. In addition, for the nuclear whistleblowers, there is Atomic Energy Act, Energy Reorganization Act, Whistleblower Enforcement Policy of the Department of Energy, and the Nuclear Regulatory Commission Statement of Policy. Also, there are similar provisions in aviation, transportation, workplace health and safety, federal contractor fraud, and federal employee protection. In fact, there are laws for the protection of whistle blowers from retaliation. While terminating a public employee from job, it is necessary to follow the Due Process Clause of the Fifth and Fourteenth Amendments. In the famous Loudermill decision of the United States Supreme Court, the court held that a public employee should be given the opportunity to be heard and notice should be served before termination so that the employee gets a chance to explain his or her side of the event, which might lead to the cancellation of the disciplinary action. Thus, as Chemerinsky (2000, p. 871) points out, before suspension or termination, all pubic employees have the right to be heard. According to the directives, the employees should be served with a notice, and the notice should contain the summary of evidence and allegations in support of the termination. The absence of such a notice means the Procedural Due Process is not followed. If this notice is not properly drafted, the employer is in danger of falling into legal disputes. When such a notice is prepared, there should be a clear reason in the notice. Also, it is necessary to point out the evidence supporting the termination which may even include substance abuse policy. Most importantly, the employee should be informed of his right to have a pre-termination hearing, and the date and time of the same should be mentioned. The pre-termination hearing will give the employee a chance to present his or her side of argument. And if the employee is not satisfied with the hearing, there is the possibility of appealing to the State Personnel Board of Review within ten days of the decision. In the famous decision in Cleveland Board of Education v. Louderill, 470 U.S 532, 542-45, 105 S. Ct. 1487, 84 L. Ed 2d 494 (1985), the court held that it is not right to deprive government employees of their employment without notice of the proposed action and a meaningful opportunity to respond to the charges. The Due Process Clause reveals certain factors which are upheld by the judiciary in cases like Arnett v. Kennedy, 416 U.S 134 (1974). According to the Clause (as cited in ‘Due Process Considerations in Terminating Public Employees’, 2002), public employees have certain substantive rights which include life, liberty, and property; and in order to deprive the employees of these rights, it is necessary to follow the procedures according to the constitution. In fact, in the famous Loudermill case, employer denied Loudermill the chance to respond to the charge against him. Aggrieved Loudermill brought the issue in front of the Civil Service Commission in the form of appeal. However, his claims were rejected by the Civil Service Commission. As there was injustice, he brought the case to the Federal District Court. There, two important points were taken into consideration: firstly, the appellant was not given reasonable amount of time to respond to the charges against him before he was dismissed; and secondly, the employer failed to ensure a proper post-removal hearing. In the case, the court held that a public employee can only be fired for a specific cause. Also, the court made clear that every such employee is entitled to a limited pre-termination and a more comprehensive post-termination hearing. Thus, the Inspector’s lawyer, in this particular case too, will be able to go to the Civil Service Commission claiming that Due Process Clause was not properly followed in the case of the Inspector. If the Civil Service Commission too sticks to the view that the termination was well in accordance with the Due Process Clause, the lawyer can move to the Federal District Court. However, in Gilbert, President, East Stroudsburg University, et al v. Homar (No. 96-651, June 9-1997), the Supreme Court made it clear that Due Process is flexible and hence, the procedural protections can be changed according to the nature of the situation. In order to claim that procedural due process is not followed, it is necessary to break the same down into three sub-issues. Firstly, it becomes necessary to prove that there is a deprivation. Secondly, it is necessary to show that the deprivation was of life, liberty or property. Thirdly, the question arises as to what procedures are due. Admittedly, the Federal Law is rather vague in this particular area due to various reasons. First of all, the court says in Gilbert v. Homar that an employee has the right to a ‘limited pre-termination hearing’ and a ‘more comprehensive’ post-termination hearing (cited in Legal Information Institute, n. d.). However, the court does not clarify what is meant by ‘limited’ and what is ‘comprehensive’. Anyway, according to the court in Gilbert v. Homar, there are three important points the court takes into consideration while deciding whether due process is followed. First of all, the court will analyze whether the private interest of the employee is affected by the official action. Secondly, the court will assess the risk of such an erroneous deprivation of interest through the procedures adopted, and benefits of adopting alternative procedural safeguards. The last point of consideration for the court will be the Government’s interest. Admittedly, the state has interest in firing employees who do not follow the rules. As the court rightly observed in Logan v. Zimmerman Brush Co., 455 U.S 422, 434, the interests of the employee could have accommodated by suspending the respondent with pay. Thus, it becomes evident that even if the employer will manage to show that Due Process is flexible, it will not be able to show that its intentions were benevolent. In the same case, it is pointed out by the court that the most important factor in deciding whether Procedural Due Process is followed in a case is the presence or absence of a pre-suspension hearing. According to the court, the intention of a pre-suspension hearing is to assure that there are reasonable grounds to support the suspension or termination. The court opines that arrest and charging will provide adequate grounds to be assured that there are reasonable grounds. In total, it becomes evident that despite the presence of various safeguards, whistleblowers are in danger of getting tortured in various ways as the rules and regulations in this connection are rather vague or confusing. As a result, though there are claims like ‘short pre-termination hearing’ and ‘more comprehensive post-termination hearing’, the court already proved they are all flexible. So, the decision of the court will be dependent up on mainly whether the private interests of the employee were injured through the action and whether the action was the best considering the interests of the government and the employee. References Chemerinsky. E. (2000). Procedural due process claims. Touro Law Review, 19, 871-894. Cleveland Board of Education v. Louderill. (1985). 470 U.S 532, 542-45, 105 S. Ct. 1487, 84 L. Ed 2d 494. Retrieved from http://bulk.resource.org/courts.gov/c/F2/938/938.F2d.860.89-2980.html Due process considerations in terminating public employees. (2002). Retrieved from http://www.coollaw.com/documents/185.pdf Gilbert, President, East Stroudsburg University v. Homar (96-651), 520 U.S. 924 (1997). Legal Information Institute. Retrieved from http://www.law.cornell.edu/supct/html/96-651.ZS.html Logan v. Zimmerman Brush Co., 455 U.S 422, 434. U.S. Supreme Court. Justia.com. retrieved from http://supreme.justia.com/cases/federal/us/455/422/case.html National Whistleblowers Center (NWC). (n. d.). Federal Whistleblower Protections. Retrieved from http://www.whistleblowers.org/index.php?option=com_content&task=view&id=816&Itemid=129 President, East Stroudsburg University, et al v. Homar, No. 96-651, June 9-1997. Retrieved from http://supreme.justia.com/cases/federal/us/520/924/case.html Read More